Tuesday, December 24, 2013

The case law in US courts on diplomatic immunity is interesting, and perhaps even the right way to interpret the Vienna Conventions. I'm no lawyer, and the case law I could find on the web deals with civil, not criminal immunity - but the reasoning I found I think applies to criminal immunity as well. The upshot is that Ms. Devyani Khobragade, even if she gets full diplomatic immunity right now, would be subject to prosecution once she leaves her post that has diplomatic immunity. She would also be open to a civil suit. (The only complication I can think of is if there is a statute of limitations and she can run the clock.)

And that is as it should be. My "fulminations" in the case are related to how an official representative of India is treated, and not with trying to permanently protect Ms. Khobragade from answering for whatever wrongdoing she may have done.

I think the court correctly states that the purpose of diplomatic immunity is to ensure the efficient performance of the functions of diplomatic missions. They would have immunity for almost anything (with the exceptions spelled out by the Vienna Convention) during the holding of such office. Once a person ceases to perform the function, they have only residual diplomatic immunity which covers only official acts. Hiring of domestic help is not an official act.You can read the full ruling of Boanan v Baja here. Briefly, Boanan was the domestic help hired by Baja, who was the Philippines Ambassador to the UN in New York City. Boanan brought a civil suit against Baja (after he left his post) with allegations much like that of Sangeeta Richard. Baja claimed diplomatic immunity, and the judge took arguments from both sides on this issue and made a ruling.

VCDR in the following is the Vienna Convention on Diplomatic Relations, 1961. Some excerpts from the ruling:

The Court's first task is to determine which provision of the VCDR, if
any, applies to the Bajas' assertion of diplomatic immunity.

Under
the VCDR, a current diplomatic agent enjoys near-absolute immunity from
civil jurisdiction. See Article 31(1). This immunity is given full
effect under United States law pursuant to the Diplomatic Relations Act,
which states that "[a]ny action or proceeding brought against an
individual who is entitled to immunity with respect to such action or
proceeding under the [VCDR] ... shall be dismissed." 22 U.S.C. § 254d.
As the preamble to the VCDR recognizes, "the purpose of such ...
immunit[y] is not to benefit individuals but to ensure the efficient
performance of the functions of diplomatic missions as representing
States." VCDR, preamble, clause 4.
...
...
Former diplomats,
however, are not eligible for the immunities provided in Article 31(1);
rather, they are eligible for residual diplomatic immunity, a more
limited form of immunity than that provided to current diplomats.
Article 39 articulates the scope of this residual immunity:

When
the functions of a person enjoying privileges and immunities have come
to an end, such privileges and immunities shall normally cease at the
moment when he leaves the country, or on expiry of a reasonable period
in which to do so, but shall subsist until that time, even in case of
armed conflict. However, with respect to acts performed by such a person
in the exercise of his functions as a member of the mission, immunity
shall continue to subsist.

Article 39(2). Under this
provision, a former diplomat benefits from immunity under the VCDR only
for "acts performed... in the exercise of his functions as a member of
the mission."

The functions of a diplomat, per article 3 of the VCDR are quoted by the court as follows:

The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;

(b)
Protecting in the receiving State the interests of the sending State
and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d)
Ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the sending
State;

(e) Promoting friendly relations between the sending State
and the receiving State, and developing their economic, cultural and
scientific relations.

The court then cites Swarna v. Al-Awadi (2009) (Indian domestic help vs member of the Kuwaiti Permanent mission to the UN in New York City) to find that hiring a domestic help is not one of these functions.

In Swarna, the plaintiff brought
an action against her former employers, including Badar Al-Awadi
("Al-Awadi"), who, at the time of the events in question, was serving in
New York City with the Permanent Mission of the State of Kuwait to the
United Nations. See 607 F.Supp.2d at 511-13. The plaintiff agreed to
work in the United States in the home of Al-Awadi and his wife in
exchange for $2,000 per month and specified vacation time. To secure a
G-5 visa for the plaintiff, Al-Awadi informed an official at the United
States Embassy in Kuwait that the plaintiff would be given a contract of
employment (though she ultimately was not given such a contract). When
the plaintiff arrived in the United States, Al-Awadi confiscated her
passport and visa. The plaintiff lived and worked as a domestic live-in
servant to Al-Awadi and his wife in their home, located about a mile
from the United Nations and the Kuwait Mission. She was forced to work
seventeen hours per day, seven days per week. Her duties included caring
for the Al-Awadis' two children, doing laundry, ironing, cleaning the
home, cooking for the family, and cooking for and serving guests who
visited the home "in honor of employees of the Kuwait Mission." Id. at
513. The plaintiff was paid $200 to $300 per month. She was prohibited
from using her promised vacation time, from leaving the apartment
unsupervised, and from using the telephone or sending mail to her
relatives in India. Finally, she was repeatedly assaulted and abused by
Al-Awadi and his wife, both physically and psychologically.

The
plaintiff's claims against Al-Awadi included slavery and slavery-like
practices in violation of the ATCA, and New York labor law violations.
The court first addressed the labor law claims, stating that while the
claims were employment-related, Al-Awadi's employment of the plaintiff
was not an "official act" because: (1) the employment bore no
relationship to the functions of a diplomatic mission listed in Article
3; (2) the plaintiff was not employed in the course of implementing an
official policy or program of the Kuwait Mission; and (3) the plaintiff
was not a subordinate of Al-Awadi, whom he hired to work at the Kuwait
Mission. Id. at 520. The court concluded that the plaintiff was
Al-Awadi's "domestic servant, hired to work in his private home, tending
to his family's personal affair[s]." Id. While the court acknowledged
that the Kuwait Mission received tangential benefits on the occasions
when Al-Awadi entertained members of the mission at his home, this did
not make the plaintiff "an employee of the mission, and did not make Mr.
Al-Awadi's act of employing her `in law the act [ ] of the sending
State.'" Id. (quoting Denza, Diplomatic Law 439).

As to the
plaintiffs ATCA claims, the court held that such alleged acts "were
private acts, not official acts" because they "were entirely peripheral
to Mr. Al-Awadi's official duties as a diplomatic agent." Id. at 521.
The court concluded that Al-Awadi did not have residual diplomatic
immunity from the plaintiff's labor law claims nor her ATCA claims, and
granted her motion for a default judgment against Al-Awadi.